European Committee, 14 Sep 1999

Meeting date: Tuesday, September 14, 1999

Official Report 199KB pdf

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Subordinate Legislation

We will move on to the consideration of the subordinate legislation.

If the committee agrees, it might be useful if I spent a couple of minutes running through the procedure for Scottish statutory instruments and how it impacts on the committee, because I appreciate that it is fairly new for most members; it certainly was new for the clerks. We have gone up a learning curve with regard to how the committee might deal with SSIs. If I go over the process, it will help the discussion.

Rule 6.8.1 of the standing orders states that the European Committee must consider and report on

"(b) the implementation of European Communities legislation".

In practice, that means that the committee must consider and report on Scottish statutory instruments. The procedures of the Parliament have been elaborated during the past few weeks. In most cases, the European Committee will not be nominated as the lead committee for SSIs because the objective of parliamentary procedure is to scrutinise the policy content, which is a subject committee function, or the legal content, which falls within the remit of the Subordinate Legislation Committee.

Your task is broadly to consider whether a particular SSI is the appropriate method for the Scottish Executive to employ to implement EC legislation in a given area. In practice, the European Committee will report its views to the nominated lead committee, which is decided by the Parliament on a motion of the Parliamentary Bureau.

The timetable for that process, in particular for the end date, is set by the SSI in question. The end point is the date by which the Parliament as a whole must either approve or annul the SSI. Usually, the end date is 40 days after the document has been received formally by the Parliament, but it can be shorter than that. Our committee has to work to a tighter time scale—before the fixed end point—because we report to lead committees; lead committees then report to the whole Parliament.

It is my considered opinion—it is only an opinion of the clerk and it is up to the committee to attach whatever weight it judges appropriate to it—that this committee may not have a substantial amount to say about any particular SSI. Procedures in the Parliament are such that the subject matter is dealt with by the lead committee and the legal matter is dealt with by the Subordinate Legislation Committee. We have a particular role.

However, if this committee, in looking through SSIs, wishes to object, because it thinks that an SSI is the wrong way for the Executive to implement EC legislation in Scotland, the procedure would be for an individual member of this committee to lodge a motion in the chamber office objecting to the SSI. That would then be addressed to the lead committee. The member of the European Committee who lodged the motion would have to attend the lead committee and speak to the motion. The decision would be taken by the lead committee.

The best procedure for us would be to come to agreement on all the SSIs, whether committee members wish to object or not. If we object, a member should be nominated to lodge a motion and attend the lead committee.

I would like to stress the fact that no committee of the Parliament can amend SSIs—they involve yes-or-no questions. The Parliament either approves or annuls SSIs. We have six of them, I think, on our current agenda, and the consideration of subordinate legislation will be a regular function of the European Committee. We can expect to see similar volumes at every meeting. We are mandated by the standing orders to consider them, and the committee must determine the detail to which it wishes to do that and report on them. We are required to put each SSI on to our agenda formally, consider it and report on it to the nominated lead committee.

I wish to clarify some things, Stephen. If a member of this or any other committee wishes to object to an SSI, can that member attend the lead committee and lodge a motion to object to it?

Yes, that is the procedure: it has to be an individual member. We as a committee could come to a view and you, convener, could nominate a member.

What strikes me as being slightly absurd is that, if any member, representing this committee, can lodge a motion, attend the lead committee and object, why bother bringing the matter to this committee in the first place?

Am I right in saying that this committee could not object? The relevant briefing paper mentions "affirmative or negative procedure", but, from what I took you to say, Stephen, it is not for this committee to make a decision, other than to send someone along to the lead committee to object.

Is it possible to amend the standing orders so that the European Committee could give its view if it was so minded? There will probably be very few occasions when that would apply, but our view would be required to be heard—only our view, which cannot be bound.

I also thought, "Why bother?" because we have no more standing.

My understanding is that our role as the European Committee is to have a view on whether the SSI is the right way of implementing the EU directive. That being so, are we not doing things back to front? We should get the final product. For example, on the Environmental Impact Assessment (Forestry) (Scotland) Regulations 1999, we are not the forestry experts; we should get the report back from the Rural Affairs Committee and the Subordinate Legislation Committee and read about what they think about it from the legal and rural affairs standpoints. We could then see from the overview—because we have the directive—whether the report is correct.

At the moment, we get the SSI and the directive that spawned that SSI—I was hoping that we would get them together—but we are not experts on either. If it was the other way round, that would give the committee more purpose, and we could come to a proper conclusion about whether the SSI was the right way of implementing the directive. As the convener and Ms MacDonald have said, what is the point? We do not know about forestry, so we just say, "Off we go to rural affairs."

I am getting totally confused. Have we got the directive?

No. The SSI is submitted today.

I want to answer a couple of questions. We do not have the initial EC directive, but, if the committee wishes, I can attach the parent directive to the SSI.

We would like the forestry committee to get that.

An issue that was raised in another subject committee is the nature of the supporting explanatory documentation that committees receive on any SSI. It was felt that the Scottish Executive could supply a very short overview of the contents of the SSI to allow committee members to understand the legislation.

We are tied to chapter 10 of the standing orders, which says that any member can lodge a motion. However, what might work is for a committee member—the convener or otherwise—to object on behalf of the committee. The committee might want to raise the matter with the Procedures Committee.

Even if a member objects, the power still lies with the lead committee. I can see the point of bringing the matter before the committee if we had some influence—where if we said no, that would be the end of it. However, I cannot see the point of a committee member objecting after our scrutiny when the final decision rests with the lead committee.

I am not exactly sure what I am supposed to scrutinise in an SSI.

Our specific role is to decide whether an SSI is the right way of implementing a directive. Decisions about the subject matter rest with the lead committee. The only way in which we can decide on the directive is through examining information from forestry and legal bods.

Can Stephen tell us a bit more about Ben's idea? I think that he has hit the nail on the head about the whole process.

My Machiavellian mind makes me think that someone could create merry hell with this. Is a member entitled to object on a matter without the committee's authority? All of us could then lodge objections to SSIs, which would make it difficult for the process to work. If that is so, perhaps some of the procedures need to be re-examined.

Where does it say that we cannot amend the SSIs or consider different wording if two committees decide that the wording is not right? It seems daft to throw the baby out with the bath water, when perhaps a small adjustment could secure the Parliament's unanimity. The whole matter seems a little arcane.

May I advise you, Bruce, on your first point about any member attending the lead committee to object? Any member of this Parliament can take part—but not vote—in any committee meeting. I understand—although I will clarify this—that the taking of motions in the lead committee will follow the model of the Parliament. The Presiding Officer—and please correct me if I am wrong—can decide which motions to take. The parallel to that in the lead committee would be that the convener would decide which, if any, motions objecting to a particular SSI to take. There may not be a huge number of members objecting to an SSI; if there were, it would be for the convener to decide which motions to take.

The motions would be motions to annul, so they would all be very similar if not identical; they would involve the committee calling on the Parliament not to approve a particular SSI. I do not have at my fingertips the legalese that says that we cannot amend SSIs but only approve or annul them. If you wish, Bruce, I will come back to you and the committee on that. In my briefing before this meeting from the legal office and the Subordinate Legislation Committee, it was made clear to me that it was a yes-no issue, not an amendment issue.

It would be useful if you could come back to us on that. I am interested only in simplicity.

I can see why it is a yes-no issue, because effectively the statutory instruments are already in force by the time they come to this committee. It is presumably meant as a constraint on the powers of the Executive that an individual committee with expertise in a particular field can annul a statutory instrument. It seems unlikely that that would happen in anything but the most extreme circumstances. I am with the convener: I think that a lot of this scrutiny would be counterproductive in terms of our time, given all the other things that we have to do.

What is the difference between our work and the work of the Subordinate Legislation Committee? I know that there is a European dimension to this, but is it not something that the Subordinate Legislation Committee could look at as well?

I have the pleasure of being on the Subordinate Legislation Committee.

Do you not look at SSIs?

Yes, we look at SSIs, but only to determine whether they are technically valid; we do not comment on whether they are good or bad. This morning we referred one to this committee.

Thanks.

It was two years late in being implemented and the Executive felt that it had to be implemented immediately, without the proper 21 days' notice to the Parliament. The Subordinate Legislation Committee felt that that was inappropriate: given that the SSI was already so late, the requirement for 21 days' notice should not have been waived.

I would like to sort out the practicalities of this. We had a similar discussion in the Transport and the Environment Committee, which may have been what Stephen was diplomatically referring to. This is the second time that this thick document in front of me has crossed my desk; last time I got to page 62, but I did not even attempt it again before this meeting. At the transport committee we suggested that, before a document went to the Subordinate Legislation Committee and then probably to two other committees, the Executive should be able to put information on one side of A4 paper, indicating what the document was about, what the impact would be and what the key issues were. All of us are going round in circles, and I do not think that that is an especially good use of our time.

That is a very sensible suggestion.

It is far too sensible—that is the problem.

Is that what the transport committee is asking for?

We have asked the Executive for that and I suggest that we do the same here.

I think that we can endorse that. In the meantime, I wonder whether there is another avenue for looking at the process. I am still unclear about the point of some of this. How could we go about asking why it needs to be dealt with in this way?

The easiest thing would be for me to speak to the legal office, to get a deeper understanding of our interpretation of standing orders. I would report back in a written paper about what the legal office is saying our committee's role has to be in this respect.

Why not ask it not only for a written paper but for someone speak to that at the next meeting?

One of the things that we discussed today at the Subordinate Legislation Committee was the fact that, because SSIs are the only things on our exciting agenda, people have looked at them more than they might have in another committee. Therefore, if there are issues, they should be flagged up in the reference to the other committee, even if they were not the issues that we were supposed to be examining. One of the issues that is being flagged up is that someone in the Executive has formed the view that directives should be implemented in Scotland and England on the same day.

Someone in your party does not seem to like you—they put you on to two committees that have got to look at SSIs.

Amazingly, I asked to be on this committee, and my penance for achieving that was to serve on the Subordinate Legislation Committee.

You will be an expert by the time this finishes.

The difficulty is this: while we struggle to understand the process, what do we do about the statutory instruments that are before us? None of the general headings look as though they are of such significance that we would want to impede the legal process.

I have gone through all of them except No 1, which I am afraid I could not get through. A lot of them, such as the one on spreadable fats, are technical. They say things such as margarine has to be over 80 per cent fat, otherwise it is not margarine. I could find no objection to that, but there has been little consultation on forestry. I have made efforts to find out people's views because the SSIs deal with impact assessment. The forestry SSI, 1999/43, and the town and country planning SSI, 1999/1 should be delayed.

Allan has made the point that they are already in force. What would be the implication of doing some of the things that have been suggested?

The forestry one is not in force.

There is still time to look at the spreadable fats SSI.

We have plenty of time for the fats one, if I remember.

I understand that all these SSIs are negative instruments, in the sense that they will come into or remain in force unless the Parliament chooses to annul them.

They will come into force unless we say no. Let us just say yes.

I have to use the language that I have been told to use by the legal office.

Annul.

Could we ask the lead committee to check? Who would it get back to?

The lead committee would report to Parliament, not to our committee.

It is a Byzantine system.

I had a note today to say that the forestry SSI would be discussed in the Transport and the Environment Committee, which is the lead committee. I was quite happy with getting the spreadable fats one out of the way.

Are we not in the wrong part of the chain? We should come back to it.

Clearly, we need a paper and someone to speak to. We need a review of the process, which seems absurd. In the meantime, I would not want the committee to prejudice the Plant Health (Amendment) (Scotland) Order 1999. What should we do with the SSIs? If we do nothing, what effect will that have? Will anybody notice?

That was my basic question. What if we say that we are annulling the lot of them and going for a cup of tea? What would happen?

Could not we note them?

What would happen?

It is not my place to comment on what would happen. If the Parliament chose to annul an SSI, in certain cases, the Executive would want to review the Parliament's difficulty with the SSI and consider whether to redraft it and send it back to the Parliament for reconsideration. Annulling an SSI would mean that that order would not become part of statute law.

The report will go to the Transport and the Environment Committee, which I hope will pick up any issues of concern. The other SSIs do not seem to be controversial and I suggest that we agree them as part of our process on the understanding that, for any future scrutiny and consideration, we want someone to explain to us exactly how that process works. Frankly, doing it this way demeans the whole process. Perhaps I am missing something, but I cannot see the point of it.

It is probably taking the easy way out to say that we will just approve the SSIs, and I am worried about our role in the process. Something in one of those SSIs might prove to be horrendous. I do not want to be Pontius Pilate.

Stephen advises me that all we are being asked to do is to comment on the SSIs.

Even if one of us were to find something in an SSI to which we objected, we could lodge a motion objecting to it with the lead committee that was considering it. Any one of us could do that individually, or we could do it collectively as a committee.

Let us just annul them anyway. That will test the system, and I bet that the procedures will be right the next time.

We nominate Bruce to go to the lead committee with an appropriate motion in the six cases.

You are on.

Stephen is panicking because that will be on the record. We were being facetious. I am in your hands. What does the committee want to do with the SSIs, given that we have been asked merely to comment on them?

We should let them go through the due process on the basis that the lead committee will consider the matter, particularly in relation to forestry. I do not think that we will hold them up to make any meaningful comment today.

Can we just note them?

We will do whatever is required. We will have another discussion on the process, which is unacceptable.

Does that mean that, for the record, I must state that I was only joking earlier?

If you turn up at six committee meetings to lodge a motion, we will know that you were not. The matter must be referred to the conveners liaison group. From comments that were made earlier, it is clear that ours is not the only committee that is struggling to understand the relevance of some of the procedures. The conveners need to examine that.